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COVID-19

Can Employers Require Workers to Get Vaccinated against Covid-19?

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Can employers require workers to get vaccinated against Covid-19? It is not simply a Yes or No answer. As of last Friday, the percentage of fully vaccinated US citizens stood at 39.6%, a stark contrast to the 5% of the worldwide population that are fully vaccinated. Despite this remarkable achievement, six out of ten Americans remain unvaccinated against Covid-19.

According to law, can employers require workers to get vaccinated

Under the law, an employer can generally require its workers to be vaccinated and can also fire an employee who refuses to do so. Some notable exceptions, however, exist to the general rule. For example, if a work force is unionized, the collective bargaining agreement may require negotiating with the union before an employer can implement a vaccine requirement.

Anti-discrimination laws also provide some protections to workers that are disabled. Under the Americans with Disabilities Act (the ADA), workers who do not want to be vaccinated for specific medical reasons are eligible to request an exemption. In this case, an employer may need to provide reasonable accommodation, such as allowing the employee to work remotely. Another exception exists under Title VII of the Civil Rights Act of 1964. Under Title VII, if taking the vaccine would conflict with a sincerely held religious belief, a worker may be able to opt out of a vaccine requirement.

Emergency use authorization

Before the pandemic, the general position of the relevant federal agencies, such as the FDA and the CDC, was that vaccines provided under emergency use authorization cannot be mandated. But that guidance was not binding. When confronted with pandemic realities, the federal government took the position that “[w]hether an employer may require or mandate Covid-19 vaccination is a matter of state or other applicable law.” And in most states, employees are “at will,” meaning they can be terminated for any reason that is not explicitly illegal.

According to a recent article authored by law professors at UC Hastings and Harvard, those arguing that the emergency use authorization statute prohibits mandates by at-will employers are claiming that this federal law is changing existing state employment law on the topic by mere implication. Such a broad prohibition covering all employers and universities in the U.S. is not, however, in the statute. Such a blanket preemption, conclude these law professors, would require clearer language, and the status of authorization (whether full or emergency) is a red herring when it comes to the mandating of Covid-19 vaccinations.

Can Employers Require Workers to Become Vaccinated against Covid-19?

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The country’s first Covid vaccine could be authorized for emergency use as soon as today. If Pfizer gets the green light, distribution is set to begin next week.

Roughly six in ten Americans say they would get a vaccine, according to a recent survey by the Pew Research Center. Although this exceeds the figure from two months ago, to achieve herd immunity experts opine that about 70% of the population would need to be vaccinated or have antibodies. 

Under the law, an employer can generally require its workers to be vaccinated and can also fire an employee who refuses to do so. Some notable exceptions, however, exist to the general rule. For example, if a work force is unionized, the collective bargaining agreement may require negotiating with the union before an employer can implement a vaccine requirement.

Anti-discrimination laws also provide some protections to workers that are disabled. Under the Americans with Disabilities Act (the ADA), workers who do not want to be vaccinated for specific medical reasons are eligible to request an exemption. In this case, an employer may need to provide reasonable accommodation, such as allowing the employee to work remotely. 

Another exception exists under Title VII of the Civil Rights Act of 1964. Under Title VII, if taking the vaccine would conflict with a sincerely held religious belief, a worker may be able to opt out of a vaccine requirement.

The initial FDA approval is expected to be an “emergency use authorization,” as opposed to full approval. The law is unclear as to whether one can mandate vaccinations based on an emergency use authorization. As such, employers may need to wait until the FDA completes the entire approval process before putting vaccination requirement protocols in place. 

Are Employers Responsible for Employees Contracting COVID-19?

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Are Employers Responsible for Employees Contracting COVID-19?

As more workers are venturing back into the workplace, many are concerned about their risk of COVID-19 infection as the coronavirus case counts continue to rise.

Should you contract COVID-19 at the workplace, you may be able to receive benefits through workers compensation. Workers’ compensation is an insurance program managed by the state. It provides pay and medical benefits to employees who have a work-related injury or illness. Not all employers provide workers’ compensation insurance, but most do. When an employee is injured or becomes sick because due to a work-related injury or illness, the “exclusive remedy” available is usually through workers compensation insurance.  

There are exceptions, however, to the exclusivity rule. These exceptions vary from state to state, but they generally include circumstances in which:

  • the employer doesn’t have workers’ comp insurance
  • someone other than the employer caused the illness, or
  • the employee became ill due to circumstances beyond the employer’s simple negligence, such as an intentional act or gross negligence on behalf of the employer.

In some states, the “intentional act” exception doesn’t apply unless the employer’s actions were specifically intended to harm employees. That could be nearly impossible to prove in the case of an employer’s failure to provide enough protection from a highly infectious disease like COVID-19.

In other states, the standards for the exception are more nuanced. For example, the Texas courts have held that the employer doesn’t necessarily have to mean to cause harm; instead, the exception may apply when there was a “substantial certainty” that the employer’s actions would result in injury or death.

One arguable example of gross negligence would be an employer who called its employees back to work and required them to work in close proximity to each other. Note, however, it is up to the injured employee to prove that the virus was likely contracted at work, and that could be a difficult hurdle to overcome as more businesses open and cases continue to rise. Even then, there are questions about whether certain claims would be granted.

Under the workers’ compensation program, an illness is covered only if it is contracted in the context of someone’s job. Illnesses such as the flu, which are referred to as “ordinary diseases of life,” typically aren’t covered. Whether COVID-19 is considered an ordinary disease remains an open question.

Employees Working Remotely May Be Entitled to Overtime

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overtime during COVID-19

Employees working remotely may be entitled to overtime. When state and local governments began issuing stay-at-home orders in response to the COVID-19 pandemic, many employees suddenly found themselves working from home. This change in practice has increased the likelihood that employees will be working overtime. In many instances, employees working remotely will have access to technology or be taking on new responsibilities that they didn’t have when they worked primarily from their offices.

Basic overtime regulations

The federal Fair Labor Standards Act (FLSA) governs overtime pay and record keeping for part-time and full-time workers in the private and public sectors. The FLSA divides employees into two categories. Nonexempt employees are generally paid hourly and are entitled to overtime pay at one and one-half times their regular rate of pay beyond a 40-hour workweek. Employees are exempt from minimum wage and overtime pay requirements if they work in certain executive, administrative, professional and outside sales positions. Exempt employees are generally salaried and not entitled to overtime pay. However, they must be paid the same amount per pay period, regardless of how many hours they work. That is, they must be paid the same even if they work more or less than 40 hours.

“Off the Clock” work may result in overtime

Recent guidance from the Department of Labor notes that employers may encourage or require employees to work from home to control the spread of COVID-19. Employers, however, are not required to have telework programs in place. Working remotely does not change the federal wage-and-hour laws; they apply the same to employees working from home. And the same overtime laws still apply to employees working from home.

With large numbers of nonexempt employees working remotely, employers may have difficulty monitoring the number of hours the employees are actually working. And many employers may be unable to use the same compliance measures they used in the workplace to monitor the hours worked by their employees. Without such measures, it’s easy to see how employees could end up working longer than a normal eight-hour workday. Typical off-the-clock tasks such as reading and responding to emails, text messages and phone calls or conducting “a few minutes of research” can add up over the course of a week and lead to a claim for unpaid overtime wages.

While working from home may cut down on the time employees lose to commuting, it may also increase the chances that employees working remotely feel compelled to work overtime. As such, any employers should take reasonable steps to ensure that its nonexempt workers are being paid overtime for each hour its remote workers are performing, including any “off-the-clock” work performed on mobile phones or tablets.

COVID-19 and the Fair Labor Standards Act’s Protections for Workers

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Due to the crisis surrounding the Coronavirus and Covid-19, millions of Americans have been forced to grapple with less than ideal working conditions such as reductions in pay, requests by employers to “volunteer” for a period of time, the loss of overtime pay or the loss of employment altogether. The Fair Labor Standards Act (FLSA) provides numerous protections for workers, including the following:

If your employer has asked you to “volunteer” to help out as a result of the Covid-19 crisis, you may want to consider the FLSA’s stringent requirements with respect to the use of volunteers.  In general, workers protected under the FLSA that are working for private, for-profit employers must be paid at least the minimum wage and cannot be expected to volunteer their services.  

If you have been laid off and have not received your last paycheck, immediate payment may be required by state law (although it is not required by federal law).  If your regular payday has passed without payment, you may be entitled to compensation under federal and/or state law.

How many hours is an employer obligated to pay an hourly-paid employee who works a partial week because the employer’s business closed? The FLSA generally applies to hours actually worked.  It does not require employers who are unable to provide work to non-exempt employees to pay them for hours the employees would have otherwise worked.

What are an employer’s obligations to an employee who is under government-imposed quarantine? The U.S. Department of Labor’s Wage and Hour Division (WHD) encourages employers to be accommodating and flexible with workers impacted by government-imposed quarantines. Employers may offer alternative work arrangements, such as teleworking, and additional paid time off to such employees.

May an employer encourage or require employees to telework (i.e., work from an alternative location such as home) as an infection control strategy? Yes. An employer may encourage or require employees to telework as an infection-control or prevention strategy, including based on timely information from public health authorities about pandemics, public health emergencies, or other similar conditions. Telework also may be a reasonable accommodation.

Of course, employers must not single out employees either to telework or to continue reporting to the workplace on a basis prohibited by any of the EEO laws. (See the U.S. Equal Employment Opportunity Commission’s publication, Work at Home/Telework as a Reasonable Accommodation, for additional information.)

Do employers have to pay employees their same hourly rate or salary if they work at home? Under the FLSA employers generally have to pay employees only for the hours they actually work, whether at home or at the employer’s office.  However, the FLSA requires employers to pay non-exempt workers at least the minimum wage for all hours worked, and at least time and one half the regular rate of pay for hours worked in excess of 40 in a workweek.  Salaried exempt employees generally must receive their full salary in any week in which they perform any work, subject to certain very limited exceptions.

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